Earlier in his judgment, Finkelstein J had made the point that under modern procedures much evidence is given in written form and the parties often rely on detailed written submissions. Accordingly, the proceedings may be unintelligible to an observer in court who has not read the written evidence or submissions. As his Honour observed (at [5]), one unintended result of such proceedings, is that the rule of open justice will not necessarily fully expose what has taken place in court.
26 It will be seen that Finkelstein J confined his observations to material that has been relied upon by a Judge. Moreover, as Mr Castle points out, Spigelman CJ in John Fairfax v Ryde Local Court observed that the principle of open justice is not engaged at the time of the filing of proceedings, but only when relevant material is 'used' or 'deployed' in open court (at [32], [65]).
27 Nonetheless, it seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under FCR O 46 r 6 will have to take into account the particular circumstances of the case. I agree with Ms Adamson's submissions to the extent that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court's determination of the issues arising in the proceedings (cf Evidence Act 1995 (Cth), ss 55, 56 (stating the test of relevance)). The approach I favour accords, for example, with Practice Note SC Gen 2 of the Supreme Court of New South Wales, which provides that access will normally be granted to non-parties in respect of material that has been admitted into evidence. I do not read anything said by Spigelman CJ in John Fairfax v Ryde Local Court as inconsistent with this approach.
28 For the reasons I have given, in exercising the discretion conferred by FCR O 46 r 6(4) I consider that considerable weight should be given to the principle of open justice. Indeed, as I have explained, I think that unless the interests of justice require otherwise in the present case, the ABC should be granted access to the non-confidential Exhibits. I am satisfied, however, that the interests of justice will be served by allowing the ABC access to the Exhibits broadly in the manner suggested by Telstra. That is, the ABC (and other media organisations) should have access to non-confidential Exhibits on the database only when it has been read or referred to in open court, or referred to in statements or written submissions admitted into evidence or provided to the Court.
29 This is a very large and complex case involving a vast amount of documentation. The Exhibits are recorded on an electronic database. Instant transmission of all non-confidential Exhibits on the database magnifies the risk that a party will be exposed to publication of confidential or sensitive material that ultimately will have no bearing on the outcome of the case or indeed on any arguments advanced by the parties. I accept that, as Mr Castle submitted, there are practical difficulties facing the parties in satisfying themselves that all confidential material has been identified and accommodated by the appropriate confidentiality regime.
30 Moreover, in my opinion there is also a significant risk that if the non-confidential Exhibits are released to the media as soon as they are admitted into evidence, some of the parties may be subjected to a forensic disadvantage. At any given time in the proceedings, particularly in the early stages, the likelihood is that only a very small proportion of the Exhibits will have been referred to in written submissions or in open court. Yet some of the Exhibits that have not been referred to may be potentially important for the cross-examination of witnesses who have not yet been called in the proceedings. The publication in the media of the substance of such Exhibits may deprive a party of a legitimate forensic advantage when it comes to cross-examination of particular witnesses.
31 Another concern is that the potential difficulties I have identified will encourage the parties to be less accommodating in their approach to the tender of documents than has been the case thus far. In particular, they may well be more reluctant to consent to the admission of documents that they consider to be of marginal relevance to the issues in the case. Similarly, they are likely to scrutinise tender 'bundles' more closely with a view to identifying in advance confidential or sensitive material or material that might be significant in the cross-examination of witnesses not yet called in the proceedings. If this occurs, the parties will be forced to spend more time and resources in analysing proposed tender bundles, diverting them from the continuing preparation required by a case of this magnitude. From the Court's point of view, considerably more time may have to be spent on resolving evidentiary disputes, thereby prolonging the proceedings and compounding the difficulty of ensuring that the trial is conducted in an orderly manner.
32 Notwithstanding the ABC's submissions, in my view the criterion proposed by Telstra for allowing non-parties access to non-confidential Exhibits is capable of being implemented without undue difficulty. The practice adopted in these proceedings has been that each document referred to in written submissions or statements is identified by a specific number which enables it to be retrieved from the database. Accordingly when the written submissions are provided to the Court or the statements admitted into evidence, the documents referred to are usually clearly identified and can be readily listed and retrieved. When a document is brought up on the screen in order to be put to a witness, the identification number of that document appears in the transcript. Such documents can also be readily listed and retrieved.
33 It is worth noting that the criterion proposed by Telstra bears some similarity to the terms of the FCR,O 15 r 18. That rule provides that, subject to a contrary order, any express or implied undertaking not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to the document
'after it has been read to or by the Court or referred to, in open court, in such terms as to disclose its contents'.
34 The fact that I have accepted the substance of Telstra's submissions does not mean that the media will necessarily be permanently denied access to all non-confidential Exhibits that have not been read or referred to in open court or referred to in written submissions or statements. As the proceedings draw to a close, some, if not all the risks to which the parties might be exposed by granting access to such Exhibits may have been diminished or even removed altogether. At that point it may be appropriate for the ABC, should it wish to do so, to renew its application.
35 I propose to direct Telstra to bring in a modified Protocol the terms of which are consistent with this judgment. The modified Protocol will need to address the fact that any electronic Media Court Book will need to be prepared by the contractors (e.law) who have set up the Court Book and the electronic courtroom. In practice, the contractors will need to have responsibility for distributing material to the media (subject to direction from the Court). There also may be practical issues requiring attention before the Protocol can be finalised. If necessary, I shall resolve any dispute that may arise about the precise terms of the Protocol.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.